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Skogen v. Kosola

United States District Court, D. Montana, Helena Division

October 10, 2017

LARRY SKOGEN and JACE SKOGEN, Plaintiffs,
v.
DAVID KOSOLA, AUSTIN HECKER, STEVE HADDON, and STATE OF MONTANA, Defendants.

          ORDER

          Dana L. Christensen, Chief Judge

         United States Magistrate Judge John T. Johnston entered Findings and Recommendations in this case on June 12, 2017, recommending that Defendants' motion to dismiss Counts 1 and 2 be denied, and further recommending that Defendants' motion to dismiss Counts 3, 4, 5, and 6 be granted. Plaintiffs Larry Skogen ("Larry") and Jace Skogen ("Jace") timely filed an objection to the Findings and Recommendations, and so are entitled to de novo review of those findings and recommendations to which they specifically object. 28 U.S.C. § 636(b)(1)(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Am, 474 U.S. 140, 149 (1985). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).

         Notwithstanding the above, "[w]here a petitioner's objections constitute perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original habeas petition, the applicable portions of the findings and recommendations will be reviewed for clear error." Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014) (citations omitted).

         BACKGROUND

         In June 2013, Larry and Jace were attending Headwaters Country Jam, a three-day music festival in Jefferson County, Montana, when they were arrested. The arrests lead to the charges in this case. Attendees to Headwaters Country Jam purchase wristbands to obtain entry into the festival for the desired number of days of which they are attending. Jace possessed a wristband allowing entry for all three days of the festival. Larry, Larry's son, Jace, and Larry's wife, Kathy, attended the festival, along with one of Jace's friends and two of Larry's nephews. (Doc. 1 at 2.)

         On the first evening of the festival, June 28, 2013, Jefferson County Reserve Deputy Austin Hecker approached a camp site where Jace, his friend SM, and Larry's nephews TS and JR were hanging out with other festival attendees. Deputy Hecker ordered everyone to stay at the camp site, called for backup, and then began requesting breath samples from the minors at the campsite. Deputy Hecker requested JR and TS provide a breath sample and both refused. Deputy Hecker cited JR and TS for obstructing a peace officer and minor-in-possession of alcohol. Around this time, other Jefferson County Deputies arrived at the campsite. Jace was then requested to provide a breath sample, but refused. Deputy Hecker arrested him, cited him for obstructing a peace officer and minor-in-possession of alcohol, and then placed him in a patrol car until he was released to his mother. Upon release to his mother, Deputy Hecker used a pocket knife to cut off Jace's three-day concert wristband. (Id.)

         While Jace was in the patrol car, a deputy asked SM for his identification. SM informed the deputy that his ID was in his car parked at the edge of the campground. As two deputies escorted SM to his car, Larry noticed and asked the deputies what was happening. The officers explained that SM had been at a campsite where there appeared to be minors drinking alcohol and they were going to obtain SM's ID and then request a breath sample. Larry informed the officers that SM had the right to refuse the breath test and further relayed to the officers that he would contact SM's parents to determine how SM should proceed. The deputies then invited Larry to go back to the campsite with them.

         After returning back to the campsite with the deputies, Larry noticed an officer attempting to give his nephew, ER, a breath test. (Id. at 3.) Larry told ER he did not have to take the test. An officer then told Larry to leave the campsite. Larry informed Jefferson County Deputy David Kosola that the deputies were violating ER's constitutional rights and that ER was his nephew so he would advise him on how to handle the situation. Deputy Kosola then arrested Larry for obstructing a peace officer.

         Larry was tried and convicted in Justice Court for Jefferson County, Montana, on the charge of obstructing a peace officer in violation of Montana Code Annotated § 45-7-302. Larry appealed his conviction to the Montana Fifth Judicial District Court. Larry was offered a plea agreement in District Court, to which he refused. The District Court dismissed the charge on June 4, 2014.

         Jace entered a plea of not guilty to the charge of obstructing a peace officer in violation of Montana Code Annotated § 45-7-302, and possession of intoxicating substance in violation of Montana Code Annotated § 45-5-624. The Justice Court for Jefferson County dismissed the obstructing a peace officer charge. Jace appeared in the Montana Fifth Judicial District Court on the possession of intoxicating substance charge. The District Court ultimately dismissed this charge, as well.

         Larry and Jace Skogen (collectively "the Skogens") filed a Complaint under 42 U.S.C. § 1983 alleging that Defendants committed multiple constitutional violations. (Doc. 1.) In Count 1, the Skogens allege that Deputy Kosola violated their First Amendment rights when arresting Larry for telling his nephew that he did not have to provide a breath sample and arresting Jace for saying that he would not provide a breath sample. (Doc. 1 at 2.) In Count 2, the Skogens allege that Deputy Hecker violated Jace's Fourth Amendment rights by unlawfully arresting him, and that Deputy Kosola violated Larry's Fourth Amendment rights by unlawfully arresting him. The Skogens further allege that Deputy Hecker's arrest of Jace also violated Larry's rights because it violated the Montana Youth Court Act. In Count 3, the Skogens allege that Deputy Hecker violated Jace's Fifth Amendment rights by unlawfully arresting him, which also violated Larry's rights under the Montana Youth Court Act. In Count 4, Jace alleges that Deputy Hecker violated his Fifth Amendment rights by cutting off his concert wristband when he released him from custody. (Doc. 1 at 5.) In Count 5, Jace alleges that Deputy Hecker violated his Sixth Amendment rights by not allowing him to speak with his mother before being questioned after his arrest for obstruction. (Doc. 1 at 5.)

         Lastly, the Skogens seek a declaration from this Court that Montana Code Annotated § 45-7-302 is unconstitutional. Judge Johnston's finding and recommendation on this issue is the bases for the Skogens' subsequent objection. (Doc. 21.) Defendants did not object to the Findings and Recommendations, but filed a response to the Skogens' objection. (Doc. 22)

         STANDARD

         The Federal Rules of Civil Procedure allow for dismissal when the allegations in the pleading "fail[] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Thus, in order to survive a motion to dismiss, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id., 556 U.S. at 678. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'shown'-'that the pleader is entitled to relief.'" Id., 556 U.S. at 679, quoting Fed. R.Civ. P. 8(a)(2). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id., 556 U.S. at 664. Nonetheless, a court may dismiss a complaint if it lacks a cognizable legal ...


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